Saturday, July 31, 2010

The burning of "Best Bakery" building was one of the shameful incidents in Gujarat riots of 2002. 14 people of which 12 were muslims died ( wikipedia article). The details of the case were:

"... period between about 8.30 p.m. on 01/03/2002 and 11.00 a.m. on 02/03/2002, residential building and bakery belonging to a Muslim family, was set on fire and burnt down by members of an unlawful assembly, the object of which, was to attack and kill the Muslims and to snatch,or damage, or destroy their properties. In the fire set to the said building, a number of persons were burnt to death. Those who survived till the morning, were made to get down from the terrace of the said building, after which they were attacked with deadlyweapons serious injuries to them. Some of them succumbed to those injuries. The movable property such as vehicles, etc., had also been set on fire by the mob of rioters. Articles such as ghee and maida, etc., were robbed and looted. The accused persons were members of the said unlawful assembly, in prosecution of the common object of which, the aforesaid offences were committed by its members. The accused were, therefore, the offenders. In the course of investigation, they were arrested and prosecuted, as aforesaid."

Zahira Sheikh was the prime eye witness for the incident when the case was prosecuted. Zahira Sheikh and other witnesses retracted their statements when the case went to the fast track trial court. As a result all accused were acquitted by the trial court. Gujarat high court in its judgment State Of Gujarat vs Rajubhai Dhamirbhai Bariya on 26 December, 2003 refused to review the trial court order. People's Union for Civil Liberties termed the gujarat high court order as a miss-carriage of justice and severly criticized it. It was appealed to Supreme Court who ordered a retrial of the case outside of Gujarat.

"The evidence of Taufel [P.W.26] shows that at the material time, he was working in the Best Bakery and was also residing there. Taufel [P.W.26] states that after having their dinner he along with Shehzad [P.W.28], Raees [P.W.27], Sailun [P.W.32], Baliram and Ramesh, all of whom were working with him in the Best Bakery, were sitting on a cot [Charpaee] kept in front of the bakery. ... Taufel identified 7 accused [out of 17], by pointing out towards them, in the Court.... Taufel has identified the said accused from among all the accused before the court, after making all of them stand in a row, at random."

One needs to go through the 693 pages of the judgment to read the reasoning behind the life imprisonment of 9 accused.

There was a tehelka probe that showed that Zahira Sheikh took 5 lakhs in order to recant her statement. Zahira Sheikh was prosecuted on account of perjury and she got a 1 year jail term with Rs 50,000 fine by the Supreme Court. The main evidence was that she was not able to account for Rs 5 lakh rupees in her bank account. Quoting from the judgment:

"So far as the question whether she was threatened, coerced, lured, induced and/or in any manner pressurized to make statements in a particular way by any person or persons, it has been found that Zahira has not been able to explain the assets in her possession in spite of several opportunities having been granted. The Inquiry Officer had referred to transcript of conversations purported to have been made between a representative of "Tehlaka" and Shri Tushar Vyas, Shri Nisar Bapu and Shri Chandrakant Ramcharan Srivastava @ Bhattoo Srivastava, Shri Madhu Srivastava, and Shri Shailesh Patel. These persons were also given opportunity to explain their stands as the transcript of the Video Compact Disc produced by Tehlaka.com clearly indicated that money was paid to Zahira to change her stand."

The rational of the stern judgment against Zahira was explained as:

"Conducts which illegitimately affect the presentation of evidence in proceedings before the Courts have to be seriously and sternly dealt with. There should not be any undue anxiety to only protect the interest of the accused. That would be unfair, as noted above, to the needs of the society. On the contrary, efforts should be to ensure fair trial where the accused and the prosecution both get a fair deal. Public interest in the proper administration of justice must be given as much importance if not more, as the interest of the Individual accused."

Saturday, July 3, 2010

The much awaited Bilski vs Kappos was decided on Monday, 28th June by the US Supreme Court. The Bilski patent was rejected earlier by the Federal court on the ground that the claimed invention was not tied to a "machine" or caused "transformation of a physical object". However, the Supreme Court rejected that line of argument saying that rejecting a "process" by a test not explicitly stated in the statute will violate the "ordinary, contemporary, common meaning of words" in a statute. So "machine or transformation" test is not "exhaustive or exclusive" test for patentability.

SC rejected the patent not on "machine or transformation" test that was used by the Federal Court. But by the test of abstractness and justified the test by:

"Any suggestion in this Court’s case law that the Patent Act’s terms deviate from their ordinary meaning has only been an explanation for the exceptions for laws of nature, physical phenomena, and abstract ideas."

And the Bilski claims are abstract ideas and do not qualify as "process" to be patentable. Here is what the court said:

"The concept of hedging, described in claim 1 and reduced to a mathematical formula in claim 4, is an unpatentable abstract idea,just like the algorithms at issue in Benson and Flook. Allowing petitioners to patent risk hedging would preempt use of this approach in all fields, and would effectively grant a monopoly over an abstract idea."

Now the question is has the court ruled correctly by categorically not rejecting all "business method patents" and "software patents". While I would love the court decision that would have completely rejected the entire category of "business methods/software" patents, I think the court has taken the right decision by not doing so. Courts refrained from categorical rejection as that would have stepped into the legislative domain. If people agree that some categories do not need patent protection, then the legislatures (US Congress in this case) should amend the law to exclude it (as India has done). Courts should not be drawing arbitrary lines that has not been contemplated by the legislatures. While this puts additional burden on the legislatures, that is where the burden lies and not on the courts.

The abstractness test is however vague and it will be interesting to see how the test is used in subsequent patent rulings. One issue is however certain: Patents that merely outline a process will have a hard time defending in the court. The patents has to be more particular in its explanation and usage. In my understanding, a lot of patents are mere description of a vague idea and they will get invalidated when brought in the court.